Hillman v. De Rosa — 90 N.Y.S. 409

Majority

p. 409

HILLMAN v. DE ROSA.

(Supreme Court, Appellate Term.

November 10, 1904.)

Headnote

1. Municipal Coubt—Appeal—Settlement op Case.

Where, though the record on appeal from the Municipal Court has an indorsement, “Duly settled and allowed,” signed by the trial judge, appellant claims the case was filed in the office of the clerk of the Supreme Court a day prior to the time for which notice of settlement thereof had been given by him, because of which the amendment proposed by him on

p. 410

the return day of the notice was denied, and that the case was never settled in accordance with Municipal Court Act, § 318 (Laws 1902, p. 1581, c. 580), and no notice of settlement or consent settling the stenographer’s minutes is attached to the return signed by the clerk of the trial court, the record will be returned to the flies to allow appellant to move that it be returned to the trial court for settlement of the case.

Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.

Action by Frank Hillman against Andre De Rosa. From a judgment for plaintiff, defendant appealed. Record returned to files to allow of motion to return for settlement of case.

Argued before FREEDMAN, P. J., and BISCHOFF and FITZGERALD, JJ.

B. F. Spellman, for appellant.

M. Silverstein, for respondent.

The record in this case comes before us with an indorsement thereon, signed by the trial judge, that the same has been “duly settled and allowed.” The appellant, however, claims that the case was filed in the office of the clerk of this court one day prior to the time for which notice of settlement thereof had been given by him,that the amendment thereto proposed by him upon the return day of his notice of settlement of the case was for that reason denied, and that such case was never settled and allowed in accordance with the provisions of section 318 of the Municipal Court act (Laws 1902, p. 1581, c. 580). Force is given to this claim by the fact that, although the return herein, signed by the clerk of the lower court, contains this statement, “Annexed hereto is the notice of appeal served upon me; also undertalcing on appeal, notice of settlement, and consent settling stenographer’s minutes,” no notice of settlement or consent settling stenographer’s minutes is attached thereto.

The record is therefore returned to the files of this court to allow the appellant to make a motion, if so desired, that the record be returned to the lower court for settlement of the case.